Citation Nr: 0626996
Decision Date: 08/28/06 Archive Date: 09/06/06
DOCKET NO. 04-18 530 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to an increased rating for tinnitus, currently
evaluated as 10 percent disabling, to include a separate
evaluation for each ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Siegel, Counsel
INTRODUCTION
The veteran served on active duty for over 20 years, and
retired from active service in October 1989.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a September 2003 rating decision in which the
St. Paul, Minnesota, Regional Office (RO) of the Department
of Veterans Affairs (VA), denied the veteran's claim for a
separate 10 percent evaluation for tinnitus in each ear.
FINDING OF FACT
The veteran's service-connected (bilateral) tinnitus is
assigned a 10 percent rating, the maximum rating authorized
under Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of an evaluation
in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A.
§1155 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code
6260 (as in effect prior to, and from, June 13, 2003);
Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran has requested an increased evaluation for
tinnitus, and specifically a 10 percent evaluation for each
ear. The RO denied the veteran's request inasmuch as under
Diagnostic Code (DC) 6260 there is no provision for
assignment of a separate 10 percent evaluation for tinnitus
of each ear. The veteran appealed that decision to the
Board.
In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court
of Appeals for Veterans Claims (Court) held that the pre-1999
and pre-June 13, 2003, versions of DC 6260 required the
assignment of dual ratings for bilateral tinnitus. VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus rating cases affected by the Smith decision. In
Smith v. Nicholson, 451 F. 3d 1344 (Fed. Cir. 2006), the
Federal Circuit concluded that the Court erred in not
deferring to the VA's interpretation of its own regulations,
38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limit a
veteran to a single disability rating for tinnitus,
regardless whether the tinnitus is unilateral or bilateral.
Subsequently, the stay of adjudication of tinnitus rating
cases was lifted.
The veteran's service-connected tinnitus has been assigned
the maximum schedular rating available for tinnitus.
38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal
basis upon which to award separate schedular evaluations for
tinnitus in each ear, the veteran's appeal must be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of
the Veterans Claims Assistance Act have no effect on an
appeal where the law, and not the underlying facts or
development of the facts, are dispositive in a matter.
Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321 only in
cases where the issue is expressly raised by the claimant or
the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, consideration of an extraschedular rating has not been
expressly raised. Further, the record before the Board does
not contain evidence of "exceptional or unusual"
circumstances that would preclude the use of the regular
rating schedule.
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ORDER
An increased rating for tinnitus, in excess of the current 10
percent rating, is denied.
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs